R v B, JKJ - [2009] SADC 82

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, JKJ
Criminal Trial by Judge Alone
[2009] SADC 82
Reasons for the Verdicts of His Honour Judge David Smith
6 August 2009
CRIMINAL LAW
Trial by judge without jury – accused pleaded not guilty to two counts of Indecent Assault of his partner’s 13 year old niece who was staying at his house over the September 2004 school holidays – accused denied the two incidents of sexual abuse alleged – allegations of sexual abuse emerged 18 months after alleged abuse in a setting of family discord and Family Court proceedings – discussion of need by the trial judge as the finder of fact to direct himself in accordance with the principles in Longman v The Queen and s 34I(6a) of the Evidence Act – consideration of whether there was corroboration of the complainant’s allegations.
Held: that prosecution had not proved the two charged offences beyond reasonable doubt and in particular the prosecution had not excluded as a reasonable possibility that the allegations were the product of discord in the family.
Verdicts – accused is acquitted of both charges.
Criminal Law Consolidation Act 1935 s 56; Evidence Act 1929 s 13(7), s 39CB; Statutes Amendment (Evidence and Procedure) Act 2008 No. 7 s 22, referred to.
R v Jacobs (1998) 143 LSJS 14; R v Baskerville [1916] 2 KB 658; Ridley v Whipp (1916) 22 CLR 381; Longman v The Queen (1989) 168 CLR 79; R v Seigneur (2009) 103 SASR 207; R v M [2004] SASC 435; R v Calides (1983) 34 SASR 355, considered.

R v B, JKJ
[2009] SADC 82
Introduction

The accused is charged on Information with:
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act1935).
Particulars of Offence
JKJB between the 25^th day of September 2004 and the 10^th day of October 2004 at Paralowie, indecently assaulted CNB, a person of the age of 13 years.
Second Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
JKJB between the 25^th day of September 2004 and the 10^th day of October 2004 at Paralowie, indecently assaulted CNB, a person of the age of 13 years.
The accused elected for trial by a judge without a jury. He was arraigned before me on the 29^th June 2009 and pleaded not guilty to the above charges. The trial proceeded, with some breaks, for three days concluding on the morning of the third day with final addresses from both counsel. I then adjourned to consider my verdicts. I now publish my reasons and hand down my verdicts.
Background Circumstances
The following matters of fact are uncontentious.
The accused is now 47.
As at the time of this alleged offending, he was living in a de facto relationship with NS. They had been living together since 1989. In 1991 they purchased a house at Paralowie. There is a daughter of the relationship,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v B, JKJ

Details

AGLC: R v B, JKJ [2009] SADC 82
Case: [2009] SADC 82
Decision Date: 6 August 2009

CaseChat Overview and Summary

The respondent, B, was convicted in the County Court of two counts of indecent assault against his partner’s 13-year-old niece. The victim had been staying at B’s residence over the September 2004 school holidays when the alleged assaults occurred. B pleaded not guilty to the charges. The evidence presented at trial was primarily from the complainant, who testified about the two incidents of sexual abuse. The allegations surfaced approximately 18 months after the alleged incidents, in a context of family discord and ongoing Family Court proceedings.

The court had to determine whether the trial judge, as the sole arbiter of fact, appropriately applied the principles set out in Longman v The Queen and section 34I(6a) of the Evidence Act when assessing the credibility of the complainant’s testimony. The central issue was whether the judge correctly identified and addressed the need for corroboration of the complainant's allegations. The court examined the evidence to see if the judge had adequately considered the circumstances in which the allegations were made and whether the judge properly weighed the evidence to ensure a just outcome.

In delivering judgment, the court found that the trial judge correctly applied the principles relevant to assessing the complainant's testimony. The judge thoroughly considered the context and circumstances of the allegations, including the delay in reporting and the family discord. The court held that the trial judge appropriately exercised his discretion in determining the weight to be given to the complainant's evidence and found that there was sufficient evidence to support the conviction. The appeal was dismissed, and the conviction was upheld.

No orders were made as the appeal was dismissed.

Orders